defendants to pay for the cargo. Replication: De

injuriâ. Issue thereon.

1854.

PENNELL

V.

To the rest of the declaration, Nunquam indebitatus. ALEXANDER. Issue on these pleas.

On the trial, before Lord Campbell C. J., at the Guildhall Sittings after Hilary Term 1853, a verdict was found for the plaintiffs, subject to a case, of which the material parts were as follows.

The plaintiffs in this action are the assignees of the estate and effects of Spencer Ashlin, who was duly declared a bankrupt on 15th November 1851. He stopped payment on 13th September 1851.

The defendants for some years last past have been residing and carrying on business as merchants at Londonderry in Ireland.

Antonio Ralli, hereafter referred to, has for some years last past been residing, and carrying on business as a corn and general merchant, in London, under the firm of A. Ralli & Co.

The first transaction of A. Ralli & Co. with the bankrupt was in August 1850; and was similar to the transaction, hereinafter mentioned, as to the cargo of the Cleopatra: and after that time there were many other precisely similar transactions, amounting in the whole to upwards of 30,000l. In every instance entries were made in A. Ralli's books similar to the invoice of 3d September 1851, first hereinafter mentioned. A. Ralli was paid by the bankrupt shortly after the respective transactions according to the credit given, except in certain cases in which the bankrupt paid prior to the expiration of credit, taking interest for the unexpired period of credit. Previously to the transaction as to the

1854.

PENNELL

V.

ALEXANDER.

HILARY TERM.

Cleopatra's cargo, the bankrupt had only one transaction with defendants.

The case then set out several letters between the bankrupt under his firm of Spencer Ashlin & Co. and defendants under their firm of J. R. & J. Alexander; of which the material parts are here extracted.

J. R. & J. Alexander to Spencer Ashlin & Co., 28th August 1851. "You may take for us two cargoes of Ibraila corn, 1000 to 1500 quarters, at 24/ or 24/3 per imperial quarter; bills of lading dated in July or August; payment by our acceptance at 2 or 3 months. One cargo of Ibraila, at same price, arrived, or near at hand, from 10 to 1200 quarters; respectable shippers; for the latter we will remit cash." "P. S. You may go to 24/6 if you find you cannot do the work at 24/ or 3d."

Spencer Ashlin & Co. to J. R. & R. Alexander, 30th August 1851. "We have your favour of the 28th instant, and obliged by your orders. Beg leave to inform you that we have taken for your account a cargo of Indian corn per the Sultan; 529 kilos. nearly 1200 quarters, from Ibraila at 24/6 per quarter. surance. Bill of lading dated 30th July.

C. F. & In

On Monday

we shall wait upon you with documents, and do what we can for you in further purchases."

J. R. & R. Alexander to Spencer Ashlin & Co., 1st September 1851. "Your esteemed favour of the 30th is to hand, and note contents, which are satisfactory. You can keep the balance of our order in hand during the week."

Spencer Ashlin & Co. to J. R. & R. Alexander, 1st September 1851. "Herewith we beg to hand you documents and invoices p. Sultan:" "to your debit 9387. 13. Od.: against which we have valued upon you from date of

XVII. VICTORIA.

We

invoice, say July 29th, at 3 months' date, which balances
the transaction; and we shall be obliged by your accept-
ance of our draft and returning the same to us.
have been unable to purchase anything more to day in
execution of your order, our market being stiffer for
Ibraila corn; but you may rely on our best exertions."

J. R. & R. Alexander to Spencer Ashlin & Co., 3d September 1851. "Your esteemed favour of the 1st is to hand; documents of Sultan inclosed. We now beg to wait upon you with acceptance to your draft, and note you keep balance of our order in hand."

The case then proceeded. On 3d September, 1851, the following contract note was signed by the bankrupt, and sent by him to Messrs. A. Ralli & Co.

"London, 3d September 1851. "Sold by order and for account of Messrs. Antonio Ralli & Co. To our principals. The cargo of Bulgarian Indian corn, fair average quality, shipped p. Cleopatra Captain A. Saliari, from Ghiacetti, consisting of 14000 kilos, as per bill of lading dated 10th July 1851, at the price of 24/6 say twenty four shillings and six pence per quarter, free on board at Ghiacetti, including freight and insurance to any safe port in the United Kingdom of Great Britain and Ireland, calling at Queenstown or Cork or Falmouth for orders; reckoning 816 kilos equal to 100 quarters; no charge for damage. Sellers to pay a commission of two per cent.; payment to be made in cash, less discount for the unexpired time of three months from the date of the bill of lading, in one week after receipt of documents and policies of insurance effected with approved underwriters, but for whose solvency sellers are not to be responsible, except the insurance is effected abroad; and in the latter case the loss or average, if any, is guaranteed to be adjusted and

1854.

PENNELL
V.

ALEXANDER.

1854.

PENNELL

V.

ALEXANDER.

paid according to the custom and insurance of Lloyd's. In case of any dispute, it is agreed by buyers and sellers to leave the same to two London corn factors, mutually chosen, or their umpire, and to be bound by their decision. Spencer Ashlin & Co."

This was a lithographed form, which the bankrupt was in the habit of using. The cargo of the Cleopatra belonged to A. Ralli; and the following entry was made in A. Ralli's books respecting the said sale of the said corn p. Cleopatra. "London Septr. 4th 1851. Messrs. S. Ashlin & Co. Drs. to the cargo of I. corn per Cleopatra" (here follows the same as in the invoice after mentioned from the words "per Cleopatra.”).

The case then set out the following letter from A. Ralli & Co. to Spencer Ashlin & Co., of 3d September 1851. "We herewith enclose the shipping documents for the cargo of I. corn p. Cleopatra, together with letter of guarantee for the insurance, and an order for the captain to follow your instructions. We also forward the invoice, and trust you will find every thing correct."

The shipping documents above referred to were in the usual form, and included the charterparty and the bill of lading, the latter of which was duly indorsed by A. Ralli. The following is a copy of the invoice inclosed in the said letter.

"Messrs. S. Ashlin & Co. London September 3d, 1851.

Bought of A. Ralli & Co.

The cargo of Indian corn per Cleopatra Captain Saliaris @Ghiacetti, as per bill of lading dated 10th July,

14,000 kilos. I. corn at 816 kos. per 100 qrs.,

equal to 1715 quarters, at 24/6 per
quarter C. F. & I.

£2101 12 10

The case then set out several letters, of which the following are the material parts.

A. Ralli & Co. to Captain Saliaris, 3d September 1851. "You will please follow the instructions of Messrs. Spencer Ashlin & Co. (or their agent) respecting your port of discharge, receiving the amount of your freight from your consignees, and without further reference to ourselves.".

Spencer Ashlin & Co. to J. R. & R. Alexander, 3d September 1851. "Your esteemed favour of the 1st instant is duly to hand; and we now beg to advise having purchased for your account the cargo of Bulgarian Indian corn p. Cleopatra at 24s. 9d. p. quarter C. F. & I., which is 3d. per quarter over your limit for Ibraila, but is proportionately cheaper. We at the same time are able to enclose you documents, viz. bill of lading, charter party, the order letter to the captain, letter of guarantee for the insurance, invoice amounting to 15257. 16s. 3d., and our draft for this sum at 3 months' E. & B.

VOL. III.

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